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2017-10-doc1 Book Bork on Cross Border Insolvency Law

The core thesis of this book, shortly reviewed here, is that cross-border insolvency rules of all kinds are founded on, and can be traced back to, basic values and that they aim to pursue and enforce such values. The book Principles of Cross-border Insolvency Law is written by professor Reinhard Bork, a very productive scholar of the University of Hamburg. It was written during a Visiting Fellowship at Magdalen College, University of Oxford, and covers cases and literature published before 30 June 2016.

Where many insolvency proceedings have increasingly cross-border effects, which are regulated by many international regulations, Bork tries to find an answer to the question of what the underlying principles of international (cross-border) insolvency laws are and how they can be used for the purpose of further harmonising cross-border insolvency law in the EU and beyond. These rules are e.g. the European Insolvency Regulation (recast) and the UNCITRAL Model Law. He also takes account of available soft law and best practices, such as the American Law Institute (ALI) Principles for the NAFTA States, and the Global Principles for Cooperation in International Insolvency Cases of 2012 and the Global Guidelines for Court-to-Court Communications in International Insolvency Cases of 2012, both written by Ian Fletcher and myself (and recently re-published, see blog/2017-09-doc1-ali-iii-global-principles-and-guidelines-2012). Also the EU Cross-Border Insolvency Court-to-Court Cooperation Principles and Guidelines (also known as JudgeCo Principles and Guidelines (see, as well as the national laws such as Chapter 15 US Bankruptcy Code or Sch. 1 Cross-Border Insolvency Regulation 2006) form a part of his study.

The matrix for the research comes from the identification, distinguishing and grouping of several principles into three groups: conflict of laws principles (e.g. unity, universality, equality, mutual trust, cooperation and communication, subsidiarity, proportionality), procedural principles (e.g. efficiency, transparency, predictability, procedural justice, priority) and substantive principles (e.g. equal treatment of creditors, optimal realisation of the debtor’s assets, debtor protection, protection of trust (for secured creditors or contractual partners), social protection (for employees or tenants)). Having grouped and identified his vast area of the object of research in jurisdictional, procedural and substantive principles, conflicts of these principles are examined.

Bork’s excellent scholarly treatment will not only be useful for scholars, but will surely help judges building up argumentation and balancing interests when deciding cases, assist practitioners in analysing their position in negotiations or litigation as well as legislators looking for input to law reform or harmonising certain concepts. Especially for PhD students professor Bork’s principle-based approach provides inspiration for evaluating research and may lead to reconsider proposals for shaping and improving cross-border insolvency law. The innovative view presented in the book has as a major advantage that the discussion well goes beyond the traditional rather old school controversy between territoriality and universality.

There is a tempting challenge, however, too. Gradually during the last decade, many EU Member States as well as the EU itself have been in a state of new orientation to the function and the workings of insolvency law, in short, a gradual shift in paradigm from the traditional view for insolvency as a creditor initiated collective collecting device to a debtor focused and stakeholder driven mechanism to continue financially troubled, but viable businesses.

As far as I can see this new orientation is not accompanied by a vivid, critical debate initiated by one or more universities or practitioners’ organisations. In our recent report on Business rescue in Insolvency Law (September 2017, see blog/2017-09-doc3-eli-business-rescue-report-published) professor Stephan Madaus and myself have tentatively suggested that developing a rescue culture – many EU countries are in the midst of it – does not simply transform insolvency law, but rather gives birth to a new and separate field of law governed by its very own principles and functions: restructuring law.

Professor Bork’s principled approach may very well enable to critically reflect on their usefulness in the area of (cross-border) restructuring, evaluate their analytical decisiveness for business rescue or assist to connect to principles which may be identified within business rescue.

Reinhard Bork, Principles of Cross-Border Insovency Law, 2017.

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